1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT CHATTANOOGA

Jeannette Melton, ) Docket No.: 2020

- 01

- 0376

Employee, )

v. ) Amazon.com Services, LLC, ) State File No.: 45066

- 2021

Employer,

And American Zurich Insurance Company,

Carrier. ) ) ) ) Judge Audrey Headrick

EXPEDITED HEARING ORDER ( D ECISION ON THE RECORD)

Ms. Melton asked the Court to order Amazon to provide a panel of physicians in New Orleans, Louisiana

. Amazon denied that Ms. Melton is entitled to a panel based on a

records review evaluation , and it also t ook issue with her its obligation to offer care by a neurologist in the requested locale

. For the reasons below, the Court holds Ms. Melton is entitled to a panel of physicians in New Orleans

.

Claim History

On June 3, 2020, a box weighing approximately five to ten pounds fell from a bin

and struck Ms. Melton on her head. After receiving emergency treatment, Ms. Melton selected Dr. Natasha Ballard from a panel. Dr. Ballard diagnosed a work

- related concussion, treated her conservatively, and referred her to Dr. Larr y Gibson, a neurologist.

Dr. Gibson also treated Ms. Melton conservatively after diagnosing a concussion

and acute

, post

- traumatic headaches

. Amazon denied an EEG ordered by Dr. Gibson for evaluation of possible seizure activity. It also denied additional physical therapy for her

neck based on u tilization r eview

.

After almost a year, Ms. Melton still complained to Dr. Gibson of ongoing headaches, neck pain, and difficulty performing daily activities. She reported that 

### FILED Mar 02, 2023 08:01 AM(ET)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2

“ [n] othing has ch anged.” In August 2022, Dr. Gibson completed a Final Medical Report

and wrote that Ms. Melton needed future medical treatment for the work injury

.

Ms. Gibson moved to New Orleans, Louisiana and requested that Amazon provide

her with a physician in her community.

After Ms. Gibson moved, Dr. Jeffrey Hazlewood, a pain management physician, performed a records review evaluation for Amazon. He diagnosed Ms. Melton with a mild traumatic brain injury. Dr. Hazlewood disagreed with D r. Gibson’s recommendation for

future treatmen t, stating he anticipated post

- injury symptoms to re solve within six months.

He concluded he was unable to “state that the ongoing symptoms, more likely than not,

based on the record review , are still due to mild traumatic brain injury.” (Emphasis in original )

.

In its position statement, Amazon wrote that it provided a panel of physicians to Ms. Melton on February 22, 2023. It asserted its search for neurologist s in Ms. Melton’s area

was unsuccessful due to the Tennessee Medical Fee Schedule. Instead, it said : “For purposes of quickly and efficiently det ermining the reason(s) for [Ms. Melton’s] continued lack of improvement, [Amazon] contacted a number of occupational physicians instead, who accept Tennessee workers’ compensation patients.”

Findings of Fact and Conclusions of Law

Ms. Melton must prove she is likely to prevail at a hearing on the merits that she is

entitled to a panel in her new community. See Tenn. Code Ann. § 50

- 6

- 239(d)(1) (20 2 2 ).

To meet this burden, Ms. Melton must show, to a reasonable degree of medical certainty, th at the accident contributed more than fifty percent in causing the need for additional medical treatment, considering all causes. Tenn. Code Ann. § 50

- 6

- 102(1 2 ).

T he statutory presumption of correctness regarding causation and treatment

recommendations does not attach to Dr. Gibson

, since he was not selected from a panel.

Id. ; Tenn. Code Ann. § 5 0

- 6

- 204(A)(1)(I)

.

Applying that standard, the Court considers the expert opinions of Drs. Gibson and

Hazlewood. Dr. Gibson wrote on a Final Medical Report that Ms. Melton need s future treatment for her work injury. Dr. Hazlewood concluded that Ms. Melton ’s ongoing

symptoms are n ot related to her work injury. He stated he expected post

- injury symptoms

from a concussion to resolve within six months.

In evaluating conflicting expert testimony, a trial court may consider, among other things, “the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that informat ion3

through other experts.” Brees v. Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Mar. 12, 2015).

After considering these factors, t he Court finds the opinion of Dr. Gibson more persuasive than Dr. Hazlewood ’s

. Dr. Gibson , a neur ologist, treated Ms. Melton for almost a year for acute, post

- traumatic headaches caused by her work

- related concussion. On the other hand, Dr. Hazlewood , a pain management physician, did n ot examine Ms. Melton but only performed a record review over two year s after the incident. Therefore, the Court

holds M s. Melton is likely to pr ove at trial that s he is entitled to additional medical benefits.

Next, the Court considers Ms. Melton’s request for a panel of neurologists in New Orleans, Louisiana. Tennessee Code Annotated section 50

- 6

- 204(a)(3)(A)(i) requires that an employer “ shall designate a group of three (3) or more independent reputable physicians

. . . if available in the injured employee’s community .” (Emphasis added).

Here, Amazon asserted a dispute no longer exists; the Court disagrees. Amazon did not offer Ms. Melton a valid panel of neurologists within her community. Instead, it offered her a panel of occupational physicians to determine “the reason(s) for [Ms. Melton’s] continued lack of improvement.” However, Ms. Melton’s first authorized physician did

not refer her to an occupational medicine specialist, but to a neurologist, and Amazon has

no legal basis to override that referral. It s late

- offered panel of occupational physicians does not comply with its obligation to furnish appropriate and necessary medical care for

M s. Melton’s injury as required by Tennessee Code Annotated section 50

- 6

- 204

. The Court holds that Ms. Melton is likely to prevail at a hearing on the merits regarding this
request.

Finally, Amazon failed to timely provide Ms. Melton with a panel of neurologists within her community, which delayed Ms. Melton in receiving ongoing medical

treatment. Therefore, the Court refers this case to the Compliance Program for consideration of penalty assessment s stemming from Amazon’s failure to provide a compliant panel and failure to continue to provide medical benefits, as well as any other applicable penalties. See Tenn. Code Ann. § 50

- 6

- 118.

IT IS, THEREFORE, ORDERED as follows:

1. Amazon s hall provide M s

. Melton a neurologist panel located in New Orleans for

h er work injury under Tennessee Code Annotated section 50

- 6

- 204 on or before March 31, 2023

. 1

1 A n employer may request a waiver from the Bureau permitting it to pay a physician according to the medical fee schedule, law, and rules governing the physician’s jurisdiction. Tenn. Comp. R. & Regs. 0800

- 02

- 17

- .18 (February 2018)

.4

2. The case is referred to the Compliance Program for investigation as outlined above.

3. This case is set for a Status Hearing on Wednesday, May 3, 2023, at 1:30 p.m.

Eastern Time. The parties must call 423

- 634

- 0164 or toll

- free at 855

- 383

- 0001 to participate. Failure to call might result in a determination of the issues without the party’s participation.

4. Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance with this Order must occur by seven business days of entry of this Order as required by Tennessee Code Annotated section 50

- 6

- 239(d)(3) . The Insurer or Self

- Insured Employer must submit confirmation of compliance by email to WCCompliance.Program@tn.gov by the compliance deadline. Failure to do so may result in a penalty assessment for non

- compliance.

5. For compliance questions, please contact the Workers’ Compensation Compliance Unit by email at WCCompliance.Program@tn.gov

.

ENTERED March 2 , 2023

.

________________________________________ Audrey A. Headrick Workers’ Compensation Judge5 APPENDIX

Exhibits : 1. Rule 72 Declaration of Ms. Melton

2. Medical records of Dr. Natasha Ballard

3. Medical records of Dr. Gibson

4. Independent Medical Evaluation of Dr. Hazlewood

5. First Report

6. Job Description

7. Panel

8. Email from Amazon to Ms. Melton

Technical record : 1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Show Cause Order

4. O rder on Show Cause Hearing

5. R equest for Expedited Hearing

6. Employer’s Response to Employee’s Request for Expedited Hearing

7. D ocketing Notice6 CERTIFICATE OF SERVICE

I certify that a copy of th is Expedited Hearing Order was sent as indicated on March 2

, 2023.

Name U.S.

Mail Email Service sent to:

Jeannette Melton, Employee X jeannettek1@bellsouth.net

C .J. Statham, Employer’s Attorney X cjstatham@mijs.com

Compliance Program X WCCompliance.Program@tn.gov

______________________________________ Penny Shrum

, Court Clerk

WC. CourtClerk@tn.gov